Personal Injury Lawyer

Several cases from the Virginia Supreme Court have held that treating physicians may testify regarding their impressions and conclusions formed while treating a patient, that deviations from the medical records does not render testimony inadmissible, and that only testimony constituting a diagnosis must be stated to a reasonable degree of medical probability, as a medical malpractice lawyer, such as from The Law Offices of Ryan Quinn, PLLC, can explain.  

In Pettus v. Gottfried, 269 Va. 69 (2005), the Virginia Supreme Court held admissible under Code § 8.01-399 a treating cardiologist’s testimony that a patient’s change in mental status “could have been” a central nervous system problem. Id. at 77-78. Although the cardiologist’s statement was not rendered within a reasonable degree of medical probability, the court held that the testimony was admissible because it did not constitute a diagnosis. Id. at 78.  The court characterized the testimony as “factual in nature,” and determined that the testimony merely explained the physician’s impressions and conclusions formed while treating the patient.  Id. at 77-78.  The court also disagreed with the contention that the cardiologist’s testimony was inadmissible since it deviated from the entries in the medical records.  The court held that since the medical records mentioned the possibility of a central nervous system embolic event, any distinction to be drawn between the written entry and the cardiologist’s testimony did not affect the admissibility but was a proper subject for cross examination.  Id. at 78.

Similarly, in Holmes v. Levine, 273 Va. 150 (2007), a medical malpractice case against a radiologist, the Virginia Supreme Court considered the medical testimony of a treating urologist to determine whether that testimony involved the rendering of a diagnosis.  Id.  At issue were the portions of § 8.01-399 referring to “diagnoses, signs and symptoms, observations, evaluations, histories, or treatment plan” that are “contemporaneously documented during the course of the practitioner’s treatment” and the requirement that a diagnosis must be “offered to a reasonable degree of medical probability” in order for it to be admissible at trial.  In Holmes, the urinalysis report indicated a “trace” of blood in the plaintiff’s urine.  Id. at 163.  In testimony later elicited by defense counsel, the urologist testified that she “did not think that an occasional red blood cell would qualify for microscopic hematuria.” Id. at 157.  The court held that this statement was not a medical diagnosis but was merely the urologist’s “impression,” formed during the plaintiff’s treatment, and was not her present medical expert opinion about the clinical significance of the results of the urinalysis.  Id. at 162.  The court also found that any distinction between the documentation in plaintiff’s medical records and the urologist’s testimony “did not affect the admissibility of the testimony but was a proper subject for cross-examination of the witness.”  Id. at 163.

And, in Graham v. Cook, 278 Va. 233 (2009), the Virginia Supreme Court considered the challenged testimony of Graham’s two radiologists.  Id. at 244.  At issue were statements that there was a “possibility of avascular necrosis,” that “avascular necrosis cannot be excluded,” that there was a “suspicion for avascular necrosis,” and a bony defect suggested a “fracture and avascular necrosis.”  Id.  The Court concluded that the challenged statements were factual in nature and related the physicians’ impressions and conclusions formed when treating plaintiff.  The court found that as factual impressions formed during these doctors’ treatment of plaintiff, the challenged findings were analogous to the statement from the treating cardiologist in Pettus that the patient’s change in mental status “could have been” a central nervous system problem, and the statement from the treating urologist in Holmes that she “did not think that an occasional red blood cell would qualify for microscopic hematuria.” Id. at 244-45.  The court further found that statements did not constitute diagnoses because they did not purport to identify specifically the cause of plaintiff’s health condition based on his signs and symptoms.  Id. at 245.  Therefore, because the statements did not impart a diagnosis, the statements were admissible under Code § 8.01-399(B), regardless of whether they were stated within a reasonable degree of medical probability.  Id.

If you’ve been injured and are wondering if you have a strong legal case, don’t wait to talk with a personal injury lawyer. Contact a law firm today for a consultation.

Filing a wrongful death lawsuit can be a difficult process as you work to move through the grief of an unexpected passing, but when the person lost is a child, the emotions involved can be even more intense. You may feel confused, angry and unsure how to proceed from a legal standpoint, but one of the first steps to take is to find out whether your relationship with the deceased child gives you the right to file a lawsuit with the assistance of a wrongful death attorney, like from David & Philpot, P.L.

Parents 

As the mother or father of the deceased child, you have a right to file for wrongful death and collect money from the proceedings. Your marital status may affect a lawsuit, so you may want to consider several factors before you proceed, such as:

• Which parent will file 
• How you will split any award granted 
• How custody might affect the disbursement of compensation 

Your attorney can help you understand your rights as a parent in your state of residence and how to file on behalf of your child.

Grandparents 

If you are the grandparent of a child who died due to the neglectful actions of another, then you may have the right to file a lawsuit depending on your legal relationship with him or her. Parents must sue in most cases, but if you were the legal guardian of the child, you may be able to file. Some states have their own laws concerning grandparents and these types of lawsuits, so you may want to consult your attorney before you file.

Legal Guardians 

Adoptive parents and other legal guardians are viewed as parents of a child in the eyes of most courts, so this relationship usually gives you the right to sue for a child’s wrongful death. You may have to prove guardianship in court before you can build your lawsuit, as having a child live or foster with you may not qualify. In most cases, guardianship must be legally recognized and documented.

Executors 

If you are the executor of a child’s estate, then you may be able to bring a wrongful death lawsuit against the party you believe to be responsible. This circumstance can come with a variety of exceptions and caveats, so you may want to look into your rights with an attorney before you proceed.

Losing a child due to someone else’s neglectful actions can be a devastating blow, but you do not have to face the future alone. Call an attorney today for further advice and information.